Water Theft: How does it happen and what can you do about it?

In simple terms, water theft is taking water without the permission of another. It is to physically steal water from another whether that be through interfering with a water meter or taking water where there is insufficient or no water allocation. Water theft typically occurs over a period of time and is more likely to happen in rural or regional areas. It also includes taking groundwater in excess of water licences and/or approvals that has not been authorised by the governing body and also using water without a water meter. Water theft offences are contained within the Water Management Act 2000 (NSW) ('The Act') and the Water Act 1912 (NSW). The offence of stealing water is hard to identify as it is difficult to prove whether the water was used by mistake or if it has been illegally stolen, especially if water entitlements exist. It should be noted that even where entitlements exist, there may be limits imposed on the amount of entitlement one has or the amount of water one can use. The Act lists a number of penalty offences an individual or corporation may incur if they are found to be in breach, including Tier 1, Tier 2 and Tier 3 penalty offences as below:

Tier	Maximum Penalty: Individuals	Penalty Units	Daily Penalty Units if offence continues	Maximum Penalty: Corporations	Penalty Units	Daily Penalty Units if offence continues
Tier 1	Imprisonment for 2 years or a fine of $1,100,000.00, or both.	10,000	1,200 = $132,000.00	Fine for $5,000,000.00	45,500	2,400 = $264,000.00
Tier 2	$500,500.00	4,550	600 = $66,000.00	$2,002,000.00	18,200	1,200 = $132,000.00
Tier 3	$11,000.00	100

  Defences While the penalties can be quite severe as can be seen in the following cases:

1. Water NSW v Harris (No 3) [2020] NSWLEC 18, being a breach of section 91G of the WMA 2000 whereby the defendants were found to have extracted water illegally for irrigation means contrary to a condition on the joint water use and supply approvals, and charged a Tier 2 offence; and
2. Water NSW v Barlow [2019] NSWLEC 30, being a breach of section 91I of the WMA 2000 where the court convicted the defendant for 3 offences with a total fine of $140,765.00 and to pay the prosecutors costs.

there are a number of possible defences which an accused person can impose under The Act, including:

• A General Defence in which the accused has against the prosecution for Access Licences, pursuant to section 60F of The Act:
• In regard to a Tier 1 offence, if the accused can establish that the commission of the offence was due to causes over which the person had no control and that the accused took all reasonable precautions and exercised due diligence to prevent the commission of the offence;
• In relation to the taking of water from a water source, applies if:

1. the accused person establishes that the water was taken pursuant to a basic landholder right or consent was given, pursuant to section 71V;
2. the water was taken in circumstances for which provision is made in a management plan under section 85A(2); or,

• the person was exempt, pursuant to The Act or the regulations, from any requirement for an access licence in relation to the taking of water from the water source;
• Part 2 Division 1A of The Act does not prevent a person from taking water, in line with an entitlement in force under the Water Act 1912, Schedule 10.
• A General Defence in which the accused has against the prosecution for Approvals, pursuant to section 91M of The Act:
• A Tier 1 offence - if the accused can establish that the commission of the offence was due to causes over which the person had no control and that the accused took all reasonable precautions and exercised due diligence to prevent the commission of the offence;
• In regard to the doing of anything without an approval, if the accused person establishes that the person was exempt, in line with this Act or the regulations, from any requirement for an approval in relation to the doing of that specific thing;
• Part 3 Division 1A of The Act does not prevent a person from doing anything pursuant to an entitlement in force under the Water Act 1912, Schedule 10.

It is the Natural Resources Access Regulator (NRAR) in particular, who is the investigative agency and is in force to ensure irrigators are being compliant with water management in NSW. The NRAR came into force in 2018 and was implemented by the NSW Government after Ken Matthews, the former National Water Commissioner chairman, put recommendations forward regarding his investigation into NSW's water management and compliance. The most common water theft offences the NRAR investigate include:

• Constructing or using water supply works without, or otherwise than as authorised by, a water supply work approval '€“ section 91B;
• Allegedly taking water from a water source while the metering equipment was not operating effectively '€“ section 91I;
• Contravening the terms or conditions of an approval '€“ section 91G;
• Taking water for which there is insufficient, or no, water allocation '€“ section 60C; and
• Taking water from a water source otherwise than in accordance with the water allocation for the access licence '€“ section 60D.

How to Avoid Water Theft In order to ensure you are not illegally stealing water, whether that be for irrigation or housing purposes, there are a few steps to take in order to avoid the possibility of theft:

1. Regularly review your access licences and approvals;
2. Regularly review your water entitlements and extraction limits;
3. Regularly review the conditions for each of your licences;
4. Review your water usage reports received at the end of each season to check the amount of water you are actually using each season and whether there is a decrease or increase in usage in comparison to previous years;
5. If at any time you are unsure of your water allocation, entitlements, current usage or just want to check that you are complying with NSW water laws regarding water meters or dams, contact any of the following four government bodies:

• Department of Industry '€“ Lands & Water, contact: 02 9338 6600
• Natural Resources Access Regulator, contact: 02 9338 6600
• WaterNSW, contact: 1300 662 077
• Office of Environment & Heritage, contact: 1300 361 967

Our Expertise Compliance is an important part of our work. We have considerable national expertise in applying and complying with state, territory and Commonwealth regulatory frameworks relating to environmental matters. Here at Hunt & Hunt Lawyers we offer a range of expertise relating to water, including:

• Assisting with water transfers
• Lodging applications through Water NSW including for water approvals, licences and dealings, security interests and metering
• Assisting with the purchases of land intended for irrigation purposes and undertaking searches to:

1. Identify any approvals decided under the Water Management Act 2000 which may be connected to the parcel of land and is to be included in the sale and transferred on settlement;
2. Identify any limitations or possible charges accompanying the approvals if there are entitlements to be transferred to the new landowner; and
3. Assist the future purchaser to assess the property as a commercial enterprise.